Legally Speaking – Turning With A Blind Eye

Ghost bike: A memorial in honor of Tracey Sparling.
Tracey Sparling, a 19-year old student at the Pacific Northwest College of Art, was returning to campus after a lunch-break trip to her apartment. As she approached the red light at an intersection, she slowed, coming to a stop next to the front tire of the cement truck in the lane next to her. When the light changed, the truck driver began to turn right, unaware of the cyclist in his blind spot. Sparling shouted “Hey!” just before she was knocked from her bike and killed. The date was October 11, 2007.

Eleven days later, Brett Jarolimek was riding in the bike lane when he was passed by a garbage truck; the truck stopped at the bottom of the hill, it’s right turn signal on. Because Jarolimek was in the bike lane, he had the right of way, and it must have seemed obvious to him that the truck was yielding the right of way. What Jarolimek didn’t know was that the truck driver’s side-view mirror was broken, and the driver couldn’t see Jarolimek approaching. As Jarolimek closed on the truck, the driver turned right, across Jarolimek’s path, killing him instantly.

Occurring within less than two weeks of each other, these tragic deaths shocked Portland, Oregon to its core. In response, Portland began installing green-painted bike boxes at intersections, with green-painted bicycle lanes continuing across the intersection. The bike boxes are designed to place cyclists ahead of motor vehicle traffic at intersections, rather than next to those motor vehicles. The City also began installing safety guards under its trucks; these guards are designed to prevent a cyclist or pedestrian from falling under the truck. While they’re no guarantee that a cyclist won’t be injured or killed — Tracey Sparling was knocked away from the cement truck, after all — they are an improvement over trucks without the guards.

The intersection where Tracey died.

Portland also initiated a series of community events intended to educate cyclists about the dangers of truck blind spots, at which cyclists were invited to sit on the cabs of large trucks and observe what happens when a bicycle is placed in a truck’s blind spots. These events were intended to address one of the problems in the Sparling and Jarolimek crashes — a cyclist in the truck’s blind spot.

But there’s another way of looking at some of these responses. The London Bicycle Activist reports that Truck and bus drivers working for the London Borough of Lambeth “are receiving training sessions in cycling road safety in a bid to prevent collisions involving cyclists and HGVs [Heavy Goods Vehicle].” The program involves classroom training and signs in trucks and buses warning drivers about the danger their vehicles pose to cyclists. The training program doesn’t stop there — with the assistance ofCycle Training UK, drivers are also receiving on-road training on bicycles “to give them greater understanding about cycling.”

While the training program for Lambeth truck and bus drivers is mandatory, training is not required for Lambeth cyclists. Nevertheless, Cycle training is also available to any resident of Lambeth who wants it, again in partnership between the Borough and Cycle Training UK.

The contrasts between European and American approaches to cycling safety are interesting:

• In Portland, bike boxes—an idea borrowed from European cities—were installed at problem intersections following the deaths of two Portland cyclists.

• In Portland, city trucks were fitted with safety guards. In contrast, in Europe, all trucks, whether public or private, have been required to be fitted with safety guards since 1989.

• In Portland, cyclists were invited into truck cabs to see how hard it is for drivers to see cyclists. In London, drivers were required to take on-road cycle training to see what it’s like to ride a bike. While it certainly can’t hurt for cyclists to gain perspective on what it’s like to drive a truck, the Portland approach implies that the truck drivers involved in the fatal accidents were not at fault, while the London approach implies that truck drivers have a duty of care to avoid hitting cyclists.

• In Portland, cyclists are told not to ride in the blind spot of trucks — and in fact, in Brett Jarolimek’s crash, a massive blind spot created by the damaged side mirror on the truck was a major factor in the collision. In Europe, all heavy trucks are required, as of March 31 of this year, to be fitted with equipment that eliminates blind spots.

• In Portland, neither driver faced criminal charges, and only one of the drivers received a traffic citation for violating the cyclist’s right of way. The driver who turned into Brett Jarolimek’s path was not cited, because the Portland Police invented a non-existent requirement that the driver had to be aware of the cyclist in order to violate his right of way — an interesting decision on the part of the Portland Police, given that the driver’s mirror was non-functional, in violation of the law. Whether either driver will be found negligent would be a matter for a jury to decide. In contrast, in the Netherlands, a driver is presumed to be negligent in any collision involving a cyclist, unless the driver can introduce evidence rebutting that presumption.

While it’s been heartening to see some of the positive changes that have taken place in Portland as a result of the tragic and needless deaths of two Portland cyclists, it’s also obvious, when compared to what our counterparts in the UK and Europe are doing, that there’s so much more we could be doing to protect cyclists in this country. The Borough of Lambeth provides one innovative example — when drivers know what the road is like from our perspective, they’re likely to be more careful with our lives.
Bob

(Research and drafting provided by Rick Bernardi, J.D.)

This article, Turning with a blind eye, originally published on Jan. 8, 2009 on VeloNews
As I noted last week, I’ve been working on updating my website lately, and it’s finally online, with an all-new look, and all-new content. You can check out the changes to my website atwww.bicyclelaw.com, including a new blog which will be updated with new content regularly. There’s another exciting change to my website—Velologue, my new blog about bicycle culture in all its aspects, is now online. You can link to it from www.bicyclelaw.com, or you can access it directly atwww.velologue.com. I hope you will visit both sites regularly.

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:

The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.